Business

Swim at Your Own Risk

In today’s litigious environment, that warning is a double-edged sword for patrons who risk drowning and owners who risk liability. Are lifeguards worth the extra cost to avoid both? Experts on each side of the issue weigh in.

The trip to
Paramount’s Kings Island in Cincinnati was to be a graduation
celebration for the Class of 2002 at the Goldblatt Elementary
School in Chicago. It was, until one of its 23 students went
missing.

Derrick Spencer, 14,
was later found at the bottom of the pool at the Quality Inn in
Evendale, Ohio, still wearing his shoes, socks and shorts. The pool
area had been opened to the group for a pizza party. Spencer had
been pushed in by one of his fellow classmates and wasn’t
found until nearly 30 to 40 minutes after he’d been reported
missing, according to news reports.

The four adult
chaperones on the trip were placed on paid leave for violating the
school’s policy that states students in pools must be watched
with a certified lifeguard and second adult supervisor. The motel
had no lifeguard present, and it was unclear how many adults were
supervising the students.

Spencer isn’t
the only one who lost his life that summer in unguarded public
pools. Across the nation, people of all ages drown in pools at
hotels, motels, apartment complexes and condominiums, where
lifeguards are typically optional and only a posted sign warns,
“Swim at your own risk.” Every year, swimmers such as
Spencer pay the ultimate price for taking that
risk.

Aquatic experts
remain divided over what should be done, especially when it comes
to hotels, motels, vacation properties and apartments. Some side
with property owners, who fear the liability providing a lifeguard
entails. This group says it’s the users’ responsibility
to behave in pools as directed. Others say it’s the
owner’s responsibility to not only hire lifeguards, but also
qualified supervisors who ensure they remain
vigilant.

Courts have done
little to clarify the issue, sometimes ruling in favor of
owners/operators of unguarded pools and sometimes ruling against
them. But while the debate continues, one fact remains undisputed:
People are dying in unguarded pools.

Drowning in statistics

Knowing exactly how many is difficult. The Centers for Disease
Control in Atlanta, which tracks drownings in the United States,
does not distinguish between deaths at guarded and unguarded pools.
In 2004, the latest statistics available, it recorded 3,308
unintentional drownings that were not a result of boating
accidents.

In Canada, where
record-keeping of death certificates is standardized across the
country, 11 percent of drownings were at multiple-unit home pools,
hotel/ motel pools, or nonresidential private pools between 1991
and 2000. It is unknown whether these pools were guarded or
not.

However, some
individual U.S. counties and states do maintain such records. In
Orange County, Fla., 20 percent of drownings of people age 18 and
under between January 2000 and August 2006 occurred in hotels. And
in Houston, 60 percent of all drowning emergencies occurred at
unguarded pools between 2005 and 2007.

Aquatics
International’s own research uncovered nearly 75
drownings and neardrownings in 2006 and 2007 that occurred in
unsupervised hotel or condominium pools. But even those numbers are
artificially low because not all drownings were reported in the
news and not all drowning reports were available for the
search.

However, the stories
are eerily similar: A 24-year-old man found unconscious in a hotel
pool in the early evening. An 11-year-old girl found at the bottom
of an apartment pool. A 51-year-old almost drowned trying to save
his 6-year-old grandson in a hotel pool. In all these situations,
there was no lifeguard, and CPR was administered — if at all
— by another bystander.

Fun vs. safe

Why aren’t these pools, which are provided as an amenity and
added bonus to the property, protected any better?

“Part of the
problem is that these types of pools don’t look
dangerous,” says Alison Osinski, president of Aquatics
Consulting Services in San Diego. “Take kids to the beach
with rip currents, they’ll perceive it as
dangerous.”

But an 18-inch-deep
wading pool doesn’t call out “danger” the same
way, as was the situation in a case Osinski is working on.
“The parent was sitting 25 feet from [the wading pool]. The
parent would have been alert if the kid was playing on the beach, but
didn’t perceive the shallow water to be dangerous.” The
child, who was staying at a well-known hotel resort in Hawaii with
her family, drowned.

New Jersey lawmakers
want to make parents such as these responsible. They fashioned a
bill that would require parents to accept full responsibility for
their children before entering swimming areas at unguarded pools
such as hotels, motels, campgrounds, private marinas and retirement
homes. Parents could be fined for leaving children under age 16
unattended around pool areas. The bill came in response to several
drownings of youngsters in the Wildwoods region of the Jersey
Shore.

Assemblyman Jeff Van
Drew, who sponsored the bill, says even if owners wanted to hire
lifeguards, they can’t find them. He may have a point.
Nationwide, municipalities report having a hard time staffing their
public pools and are putting lifeguards on overtime to deal with
the problem. A recent report from the American Red Cross showed
that in Miami-Dade and Broward counties in Florida, where pools are
populous, the number of lifeguards certified by the association has
slipped 25 percent since 2004; however, that may be due more to
funding issues than lifeguard shortages.

“This bill is
the best alternative to keep children as safe as possible, while
enabling motels and hotels to keep their pools open,” Van
Drew says in a statement.

Maybe, but that
doesn’t change the fact that too many owners’
priorities are about making pools fun, not safe, says Tom
Griffiths, Ed.D., director of aquatics and safety officer at Penn
State University in State College, Pa. These owners follow the
minimal safety regulations, just to stay compliant. Many put in
pools without thinking about what kind would serve the best
purpose. For example, a pool does not need to be more than 5 feet
deep for guests to enjoy. In many drowning cases, a victim has
ended up in the “deep end” and can’t get out,
Griffiths says.

“If your
facility is limited to a maximum of 5 feet of water, you reduce the
probability [of drowning] by 50 percent,” he says. In those
cases, a non-swimming adult can rescue a child in 5 feet of
water.

Even something as
simple as proper striping on the sides and bottoms of pools, or an
emergency phone available that doesn’t require a
“9” to dial out is missing, says Maria Bella, president
of Professional Pool Solutions, LLC, in Reading,
Pa.

Sometimes managers
aren’t even sure what the proper codes are.

“Very often
the state requirements for safety lines, pool water clarity, rescue
equipment and adults with children have not been met,” says
Frank Pia, president of Pia Enterprises in Larchmont, N.Y., and
chairman of the Health & Safety Advisory Committee of the
American Red Cross. Even if managers try to be compliant,
there’s a widespread lack of health inspections to even
double-check that they’re within code.

Sign language

But many hotel owners aren’t thinking in that way.
“They’re distracted with number of rooms filled, how
many conferences can they hold, getting rooms cleaned,”
Griffiths says. “It’s such a stressful, all
encompassing line of work, I think they’re led to believe if
they put in a pool and ‘Swim at your own risk’ signs,
they’re covered.”

That’s the
contention of Joe McInerney, president/CEO of the American Hotel
& Lodging Association in Washington, D.C. He says it’s
the user’s responsibility to read all signs and follow the
rules. “If they generally ignore them, shame on them. Signs
are being posted for a reason,” he says. “If the guest
doesn’t want to pay attention to them, we can tell they
don’t want to use reasonable care. They’re going to do
whatever they want.”

Others outside the
hotel industry agree. “Patrons need to realize the hazard,
take appropriate measures and bear some responsibility for their
own protection,” says Dr. Julie Gilchrist, medical
epidemiologist with the CDC in Atlanta.

Adults who know they
can’t swim very well should take extra caution when in a pool
and take note where the depth may drop off from shallow to deep,
points out attorney Michael Haggard, partner at The Haggard Law
Firm in Coral Gables, Fla., who has handled several drowning cases.
“A hotel doesn’t have the duty to tell you [with] a
depth marker every 6 inches.” Nor does a property manager
have the responsibility for an adult’s poor decision making,
especially if management exercised reasonable care. And if an adult
lets a child through the self-latching gate into the pool area and
is aware no lifeguard is on duty, it’s their responsibility
to watch the child, not management’s.

But violating the
rules is something a lifeguard can prevent. “Posting a sign
stating ‘Swim at your own risk’ is like saying,
‘Have a nice day,’ ” Osinski notes. “What
does swim at your own risk mean? It’s telling you
there’s no lifeguard, but it’s not telling you nobody
will rescue you, or we’re not responsible when you’re
using an amenity we provided.”

Pia agrees:
“The facility cannot take the stance that we posted a sign,
no lifeguard on duty, swim at your own risk, and then basically
wash their hands of any other actions on their
part.”

A recent court
ruling adds weight to that argument. Garrison’s Canoe Rental
and Campground Inc. in Steelville, Mo., offered a number of
amenities for its guests, including a swimming pool. Despite a sign
warning patrons that there was no lifeguard and to swim at their
own risk, 10-year-old Crystal Winston drowned in the pool while
attending the Christian summer camp in 2002. Her family sued
Garrison and the church that encouraged them to send Winston to the
camp. The case settled for $2.5 million.

That amount was the
joint policy limits of the church’s and Garrison’s
insurance policies. Out of good faith, the plaintiffs decided not
to exceed either party’s limits.

Even when signs are
posted, the minimum compliance often isn’t being met. Broken
fences, wrong rescue tools, missing depth markings and poor
maintenance lead to accidents. A 2-year-old toddler in Hollywood,
Fla., wandered through a broken pool gate and nearly drowned in the
pool of her apartment complex. Though she lived, she suffered
irreversible brain damage. In 2001, the family sued the manager and
won $100 million, one of the largest verdicts in
Florida.

To guard or not to guard

Meanwhile, hotels and apartment pool owners must wrestle between
ethics and liability. Is it better to hire a lifeguard to protect
patrons and risk taking on the liability, or to not have a guard on
staff and avoid the liability?

Ultimately, the
question comes down to one thing: Cost. “The reason [hotels]
don’t have to have [lifeguards] in Pennsylvania is a very
strong hotel-motel lobby that lobbies against lifeguards, because
of the cost,” Bella says.

But even she admits
that lifeguards have a psychological effect on how parents and
guardians watch their kids. “I’ve seen parents walk
into a hotel pool and immediately disregard what’s going on
with their children,” Bella says.

Lifeguards
themselves are not enough either, others argue. They require
mentoring, monitoring and continuous training to be effective,
experts say.

Witness a $24
million verdict to the family of a 3-year-old who nearly drowned in
her apartment pool in Upper Darby, Pa., in 1993. Managers of the
apartment complex had hired a firm to run the swimming pool, and
two lifeguards were part of the agreement. A photograph, however,
showed the guards lying on their backs, one with headphones on and
the other with her eyes closed, on the day of the
drowning.

The pool management
company was found 75 percent responsible, and the apartment
management company 25 percent, even though it had taken steps to
hire the company and provide lifeguards.

Such cases back up
Griffiths’ belief that some pools should remain unguarded
rather than have a single, unsupervised lifeguard on deck.
“In small, traditional hotel/ motel pools, I don’t
believe they should be guarded,” he says. Without a guard,
parents may be more likely to watch their kids
closer.

But what of the
question of liability? According to tort law, hiring a lifeguard
even when it isn’t required, means the owner has taken on the
responsibility for anything that happens, even if the guard
can’t save a drowning victim. In other words, owners could be
sued for trying to do the “right thing” even if they
didn’t have to. “No good deed goes unpunished,”
says Steven Adamsky, a partner at the law firm Mitrani, Rynor &
Adamsky in Fort Lauderdale, Fla. “There’s a divide
between moral and ethical, and avoiding legal
responsibility.”

Attorney Haggard
disagrees: “It’s a silly argument. When you put more
safety out there, you have a better defense. You’re showing
that [you’re] doing all [you] can.”

Other drowning
lawsuits where lifeguards were on duty have been dropped because
the guard did his or her job, but was unsuccessful in saving the
individual. In one case where a 9-year-old drowned at a YMCA in
Jackson, Miss., in 2001, three of the four defendants were dropped
from the suit, including the YMCA, because it had proven that the
six lifeguards had performed as expected. The case settled
confidentially. People often sue to shed their own guilt, Griffiths
says.

The hotel industry,
however, contends that its priority is guest safety. “Hotels
protect themselves by having the right procedures, posting hours,
having adequate insurance,” McInerney says.

Having a good
insurance plan is essential to avoid becoming bankrupt and losing
business. According to the National Safety Council, for every
near-drowning incident, health care costs range from $75,000 for
emergency room services to $180,000 annually for long-term care.
The comprehensive cost of a single death is approximately $3.8
million — far more than paying for a lifeguard and proper
equipment.

But while a good
insurance plan can protect the owner financially, it doesn’t
save people from drowning, experts say, nor does it necessarily
shield the owner from bad publicity and negative
press.

Educate and
enforce

In the end, it’s important to communicate that a pool can be
fun as well as safe, if rules and procedures are followed properly.
But make sure to balance both without ruining the experience for
patrons.

“If you go
overboard on safety and signage, nobody wants to go in the
pool,” Adamsky says. “Resorts need to harmonize
avoiding liability by doing nothing and making it look scary by
having something that is presentable and marketable, and still
meeting safety requirements.”

But before telling
patrons how to use the pool, hire an aquatic consultant who will
tell you how to run a pool, experts advise.

“A big mistake
that hotels, motels, apartments and condos make is, they want the
pool to look aesthetically pleasing,” Griffiths says.
“So what they do is put in a swimming pool deck composed of
large, good-looking ceramic tiles. In a wet environment,
they’re slippery, although they look rough to the
touch.” An aquatic consultant would steer the owners away
from that to avoid slips and falls.

In addition, a
consultant can walk through the property to make sure the
management program works from a legal risk management point-of-view
while protecting users, Adamsky says. Consultants will cover as
much ground as possible, from design to safety procedures. They
will make sure the staff is trained on all procedures, so one can
take over for another if that person is absent from
work.

Next, take the
information learned from the consultant and educate patrons on
safety around the pool. “At check-in at resorts they give you
a packet of information on restaurants, bars, the spa … [so]
put in a safety sheet,” Adamsky suggests. The safety
information should state how to “enjoy the facility, remember
to be safe and exercise discretion” and include emergency
phone numbers. The numbers, however, should be for first responders
in the county, not the resort, so the resort does not have to
undertake the responsibility to answer the
questions.

Make the information
in different languages, if necessary, based on the types of guests
and residents who might use the facility. And while guests are
being checked in, have the front desk clerk explain the rules of
the pool, brief them on safety and how to reach someone for
emergencies.

Similarly, all
residents of apartments should be given safety information when
signing a lease or joining the homeowners’
association.

If a group of
children is visiting the pool as part of a birthday party or
outing, make sure there’s a lifeguard and another adult
supervisor, experts say. Managers who allow large groups to rent
out a pool should also provide a lifeguard service as part of the
package.

Residents of an
apartment with a pool should treat it as if they own the pool,
Gilchrist says. “Make sure the gate and chemicals are
maintained well, and the fence is adequate,” she says. Alert
management to any hazards immediately and make sure they are
addressed.

Don’t allow
patrons to swim alone, experts urge. Enforce a buddy system so if
one gets in trouble, the other can help or get help. “Even
very experienced swimmers can find themselves in difficulty —
muscle cramp, asthma attack, a seizure, all kinds of
reasons,” Gilchrist says. “If you’re there by
yourself, you’re less likely to navigate yourself out of an
aquatic situation.”

If the pool has a
deep end, place a rope or line across the pool so patrons know
where the pool begins to deepen and can stay in the shallow
area.

Should a manager
decide to hire lifeguards, make sure they are there for one
purpose: to watch the pool. Not to fold towels, clean up the deck,
play with children, take beverage orders or the like. That should
be up to pool attendants. If a drowning occurs because a lifeguard
was busy giving patrons directions to a museum, that won’t
hold up well in a courtroom, experts say.

Train all hotel
staff in CPR and first aid, and suggest apartment residents be
trained as well. The Houston Apartment Association has a
partnership with the YMCA that offers child and parent safety
classes, says Aimee Bertrand, public affairs specialist for the
HAA. Houston apartments are not required to have
lifeguards.

Also see to it that
everything is up to code. Check that signage is clearly placed and
marked, without being cutesy (Adamsky recommends not using
rustic-looking wood signs that may be easily ignored). Place rescue
equipment in visible sight and mark it clearly so people
don’t get confused, such as putting a leaf tool next to the
shepherd’s pole. Make sure an automatic defibrillator is
available with instructions, and that all staff members have been
trained on how to use it. Clearly mark all pool depths, and keep a
list of emergency numbers next to a phone that does not require
“9” to dial out.

Lastly, encourage
guests and residents to enjoy the pool safely. “We need to
continue to educate [owners and operators] that while the water is
pretty and fun, it’s really dangerous,” Gilchrist says.
“If people realize there’s a danger, they should take
steps to overcome or minimize it.